Bothell v. Hoellwarth

• Decision Date: 16 February 1898
• Citation: 74 N.W. 231,10 S.D. 491
• Parties: A. C. BOTHELL, Plaintiff and appellant, v. THOMAS HOELLWARTH, Bertha Hoellwarth, Defendant and respondent.
• Court: South Dakota Supreme Court

10 S.D. 491

74 N.W. 231

A. C. BOTHELL, Plaintiff and appellant,

v.

THOMAS HOELLWARTH, Bertha Hoellwarth, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. J. W. Jones, Judge Affirmed C. A. Christopherson Attorney for appellant. T. B. McMartin Attorney for respondent. Opinion filed Feb. 16, 1898

CORSON, P. J.

This is an appeal from an order vacating and setting aside the judgment, the order of publication, and all proceedings had in the action. On November 6, 1896, the plaintiff issued a summons in the action, and caused a warrant of attachment to issue, under which property of the defendants in Minnehaha county was attached. On November 23rd the plaintiff presented to the circuit court an affidavit for an order for the publication of the summons, the material parts of which, for the purposes of this decision, are as follows:

“I, A. C. Bothell. being first duly sworn, do on oath depose and say that I am the plaintiff in the above entitled action; that the said defendants, Th. Hoellwarth and Bertha Hoellwarth, cannot, after due diligence, be found within the state of South Dakota; that the said defendants are absent from and are not residents of the said state of South Dakota, and do now reside at Greeley, in the state of Nebraska, and that said defendants cannot be served with a summons in this action in the state of South Dakota; … that said cause of action so exists against said defendants in favor of said plaintiff, as will more fully appear by the verified complaint of plaintiff, which is hereto annexed, and made a part hereof; that the said defendants are absent from, and not residents of, the state of South Dakota, but have property herein, and the court has jurisdiction of the subject of the action.”

The circuit court thereupon granted the order. The summons was not, in fact, published, but, in lieu of such publication, the same, with a copy of the complaint, was personally served upon the defendants in Greeley; Neb., on November 26th. Neither the complaint, affidavit, nor order of publication were filed until about the time the judgment was rendered, on January 2, 1897. On January 11th the defendants, appearing specially for that purpose, procured an order to show cause, why the judgment, affidavit, order for publication, and all proceedings in the case should not be vacated and set aside upon the grounds that the court had no jurisdiction of the action,

“in that the affidavit of publication does not show any diligence to serve the same within the state, the order of publication is not entitled, and that the summons, complaint, and order were not filed until after the judgment herein was signed, and for other omissions and irregularities appearing upon the face of said papers.”

On the hearing the order to show cause was made absolute, and the order appealed from entered. The making of this order is assigned as error. Upon which of the grounds stated the order of the court was made does not appear, and therefore, if properly made upon either of the grounds, it must be affirmed.

The respondents insist that the affidavit upon which the order of publication was made is insufficient, in that it fails to show any proof of diligence on the part of the plaintiff to...